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Smith, Elmer A. 

Abraham Lincoln: An 
Illinois Central Lawyer 





the Class of 1901 

founded by 




gtaijam Lincoln 

A paper read by 

Elmer A. Smith, Senior General Attorney 

of the Illinois Central Railroad Company, 

at a meeting of the Western Conference 

of Railway Counsel, February 13, 1945 

Digitized by the Internet Archive 

in 2012 with funding from 

University of Illinois Urbana-Champaign 

atirafjam Htncoln 


Lincoln's career as a lawyer is a subject that has held and will 
eternally hold, the interest of lawyers. 1 It seems appropriate, there- 
fore, that on this day, the day after Lincoln's 136th birthday, some' 
thing should be said to the Western Conference of Railway Counsel 
on some aspect of Lincoln's life as a lawyer. 

The title of my address today is not Lincoln as a student of law, 
or as a trial lawyer in the nisi prius courts, or as an advocate in the 
Supreme Court, or as a constitutional lawyer, as interesting and im- 
portant as are these segments of Lincoln's life. It is a title which comes 
closer home to railroad lawyers— LINCOLN : AN ILLINOIS CEN- 

For Lincoln was an Illinois Central lawyer in every sense of the 
term. Lincoln's letters show that he wanted the Illinois Central as 
a client. During a period of almost a decade, he tried many cases for 
the Illinois Central in the lower courts of Illinois. He argued with 
great distinction and success some very important cases for the Illinois 
Central in the Supreme Court of Illinois. The last cases that he argued 
in that Court, in the very year of his election to the Presidency, were 
on behalf of the Illinois Central. The largest fee that he ever received 
from any client was from the Illinois Central. I think that it is an 
accurate statement that Lincoln did more work for the Illinois Central 
than for any other client. We have in our records a photograph of an 
Illinois Central pass issued to Lincoln for the year 1858. He is thus 
described on the face of this pass: "Hon. A. Lincoln, Attorney for 

1 Some of the books and articles which deal with Lincoln's career as a lawyer 
are: Whitney, Life on the Circuit with Lincoln; Richards, Lincoln, Lawyer-States- 
man; Hill, Lincoln the Lawyer; Woldman, Lawyer Lincoln; Townsend, Lincoln the 
Litigant; Zane, Lincoln, the Constitutional Lawyer, Abraham Lincoln Association 
Papers, 1932, p. 27; Angle, Lincoln: Circuit Lawyer, Lincoln Centennial Associa- 
tion Papers, 1928, p. 19; Thomas, Lincoln and the Courts, Abraham Lincoln 
Association Papers, 1933; Beveridge, Abraham Lincoln, Vol. I, pp. 494-607; Pratt, 
The Personal Finances of Abraham Lincoln, pp. 25-27; Weik, The Real Lincoln — A 
Portrait, pp. 127-205; Brown, Abraham Lincoln and the Illinois Central Railroad, 
1857-1860, Journal of the Illinois Historical Society, Vol. XXXVI, pp. 121-163. 


Company." That he used the pass is shown by the fact that it is 
punched ten times. 2 

And he did not forget his old client when he became President. 
In 1863, through his intervention, the Illinois Central received some 
long overdue payments for the transportation of government property 
and troops over its lines. 3 The Illinois Central then had controversies 
with the government arising out of the land-grant statutes just as all 
railroads have today. The government was just as arbitrary then in 
respect to these matters as it is today. 

The Illinois Central Railroad Company was incorporated by an 
Act of Illinois approved February 10, 1851. What had the years up 
to 1851 done for Lincoln? He was then forty-two years of age. He 
had served as a captain and a private in the Black Hawk War. He 
had practiced law for fourteen years. He had ridden the Eighth Cir- 
cuit, which was composed at one time of as many as fourteen counties 
in central Illinois, year in and year out. He had tried innumerable 
cases in the nisi prius courts. He had argued one hundred and three 
cases in the Illinois Supreme Court. He had served four terms — eight 
years — in the Illinois State Legislature and one term as a Representa- 
tive in the Congress of the United States. He had been the acknowl- 
edged leader of the Whig Party in Illinois. If he was not in 1851 the 
leading lawyer in central Illinois, he was certainly one of the leading 

It would seem only natural that a newly-chartered railroad corpora- 
tion such as the Illinois Central, undertaking to construct a railroad 
having a greater mileage than any existing railroad, with its lines ex- 
tending through the counties in which Lincoln had practiced for so 
many years, would eventually seek and indeed need the services of a 
lawyer like Lincoln. The construction and operation of the Illinois 
Central inevitably gave rise to litigation presenting new and novel 
problems of all kinds, problems in the solution of which a lawyer like 
Lincoln would want to participate. 

'■*■ Henry C. Whitney said that he once took a midnight train at Champaign and 
found Lincoln on board. Lincoln explained to him that he was going to Chicago, 
that he had passes on the Illinois Central and the Great Western, that he could 
get to Chicago by the circuitous route free, while he had no pass by the direct route. 
Sandburg, The Prairie Years, Vol. 2, p. 36. 

3 Starr, Lincoln and the Railroads, pp. 70-72. 

3. / L(0 J '«3"i 


We do not know the exact date when Lincoln was first retained 
by the Illinois Central. Mr. John G. Drennan, whom some of you 
will remember as District Attorney for the Illinois Central, once said 4 
that Lincoln appeared before the committee of the Illinois Legislature 
at the time it reported favorably on the charter creating the Illinois 
Central. 5 Apparently this statement was based upon an affidavit made 
by Judge Anthony Thornton of Shelby County, Illinois. Judge 
Thornton was a member of the Legislature which granted the charter. 
He said he had a "distinct recollection that Mr. Lincoln and several 
members of the Legislature were engaged by the Illinois Central." 

It is to be remembered that in those days there were no general 
incorporation acts, but that the plankroad companies, canal com- 
panics, coal-mining companies, and railroad companies were incor- 
porated by special acts of the Legislature. An important part of the 
work of a lawyer consisted, therefore, of appearing before the Legis- 
lature on behalf of persons seeking the passage of an act creating a 

The most important problem before the Illinois Legislature at its 
1851 session 6 was the disposition of lands for a railroad which Illinois 
had just received from the Federal government under the Act of Sep- 

4 A. Lincoln, Once Illinois Central Attorney, Illinois Central Magazine, February, 

" Beveridge, in his unfinished Life of Lincoln (Vol. I, p. 585) says: "It would 
appear that almost immediately after the construction of the Illinois Central began, 
James F. Joy (Counsel of the Illinois Central) retained Lincoln as the Company's 
attorney at Springfield." But the references which Beveridge gives do not support 
this conclusion. Beveridge quotes a letter written by Lincoln from Springfield to 
Charles Hoyt (who, according to Beveridge, was an attorney for the Illinois Central 
at Chicago), on January 11, 1851, a month before the charter was actually granted 
by the State of Illinois, in which Lincoln said: "On Friday morning last, Mr. 
Joy filed his papers and entered his motion for a mandamus and urged me to take 
up the motion as soon as possible." 

It is clear, however, that the case Lincoln referred to was not an Illinois Central 
case, but was a mandamus case brought by the Chicago, Burlington & Quincy 
Railroad Company against Judge Wilson to require him to appoint commissioners 
to fix the compensation for appropriating certain property for the use of the rail- 
road company in the construction of depots, engine houses, and shops in Kane 
County, Illinois (C. B. & Q. R. R. Co. v. Wilson, 17 111. 123). The Supreme 
Court's report shows that James F. Joy appeared for the Chicago, Burlington & 
Quincy, and Lincoln and Goodrich contra. Mr. Joy was a distinguished lawyer 
and business executive of the Fifties. According to the records of the Illinois 
Central, he was not appointed Solicitor for the Illinois Central until September 4, 
1852 (Minutes of Meetings of Executive Committee, September 4, 1852). Charles 
Hoyt was not an attorney for the Illinois Central. 

Gates, Illinois Central Railroad and Its Colonization Work, pp. 44-61. 


tember 20, 1850. This Act granted lands to Illinois, Mississippi and 
Alabama for the construction of railroads to extend from the western 
end of the Illinois and Michigan Canal to Mobile, Alabama, via Cairo, 
with a branch to Dubuque, via Galena, and another branch to Chicago. 

Several influential groups of capitalists sought to secure this land 
grant. Many of the men in these groups were men of prominence, 
influence, and wealth. They foresaw the prosperity that would follow 
the construction of a railroad through the grand prairies of Illinois. 

In view of the influence of the groups that were before the Legis- 
lature in 1851, each presenting its own views with respect to the dis- 
position to be made by Illinois of the lands granted by the Federal 
government, and the importance to the public of the problem (for 
upon it depended the question whether Illinois was to have a rail- 
road) , it seems only reasonable to suppose that Lincoln must have been 
retained by some one of these groups. 

One of these groups represented eastern capitalists who had done 
a good deal of work in promoting the Michigan Central Railroad. 7 
These men in their Memorial to the Legislature of January 15, 1851, 
submitting a plan for the construction and completion of the Illinois 
Central Railroad, offered to pay to the State annually an unnamed 
per cent of the gross earnings of the railroad company. 8 The offer of 
this eastern group was embodied in the Act incorporating the Illinois 
Central Railroad, 9 and hence all the troubles of the Illinois Central 
respecting the payment of taxes under its charter. Apparently the 
only piece of luck that the Illinois Central had was the fact that the 
total tax, in the event there was a State tax, was made 7 per cent, and 
not 10 per cent as was first proposed. 10 

That Lincoln followed the proceedings of the Legislature with in- 
terest during the session of 1850-1851 is shown by the fact that at the 
end of the session he wrote to William Martin : "The legislature hav- 
ing got out of the way, I at last find time to attend to the business you 
left with me. * * *" X1 

7 Gates, Illinois Central Railroad and Its Colonization Work, p. 49. See also 
Brownson, History of the Illinois Central to 1870, pp. 31-39. 

8 Ackerman, Illinois Central Railroad — Historical Sketch, p. 77. 

9 Act of February 10, 1851, Session Laws of Illinois, 1851, p. 72. 

10 Ackerman, Illinois Central Railroad — Historical Sketch, p. 78. 

11 Thomas, Lincoln, 1847-1853, pp. Ivii-lviii. 


The statement by Judge Thornton that Lincoln was engaged by 
the Illinois Central at the 1851 session of the Legislature is disputed 
by others. 12 W. K. Ackerman, President of the Illinois Central from 
1877 to 1883, a man who it might be presumed knew the facts, thus 
dealt with this point in his Historical Sketch of the Illinois Central: 13 

"At the time application was made to the Legislature of Illinois 
for the Illinois Central Railroad charter, there were certain 
Western capitalists who desired to secure it, as they did not wish 
the project to go to Eastern capitalists. Abraham Lincoln was 
employed on their behalf but he was unsuccessful. When in 
1863, Rantoul's son — the present mayor of Salem, Mass.— was 
introduced to President Lincoln at the White House, the latter 
referred to this fact and acknowledged he did all he could to 
stop it, but added with a laugh and slapping his lank thighs, 
Tour father beat me, he beat me! 1 " 

Rantoul was one of the men who signed the Memorial to the 
Illinois Legislature, heretofore referred to, and was one of the in- 
corporators of the Illinois Central. This statement by Mr. Ackerman 
would seem to settle the question whether Lincoln was retained by the 
eastern capitalists to urge upon the Legislature the passage of the Act 
incorporating the Illinois Central Railroad Company. 

James F. Joy, Counsel of the Illinois Central, wrote some letters 
in the early part of 1854 to W. P. Burrall, its President, regarding 
the employment of a person in Springfield to represent the Illinois 
Central before the Legislature. No name was mentioned, but it has 
been suggested 14 that the man referred to was Lincoln. Joy said: 

"There is one man, however, whom it is for the interest of the 
Company to have with us in every way and who hitherto I have 
always had with me and whom for no consideration should I want 
against me in the Legislature. I would recommend that he be 
interested permanently for the Company, as it is apparent that 
you will need more or less legislation frequently. A retainer or 
a salary of $1,000 a year will command him, and he is a valuable 
ally and a dangerous opponent in any matter before the Legisla- 

We do not know whether Joy had Lincoln in mind. We know 
that what he said would apply to Lincoln. We do not know who was 

12 Pratt, The Personal Finances of Abraham Lincoln, pp. 48-50. 

13 Ackerman, Illinois Central Railroad — Historical Sketch, p. 29. 

14 Thomas, Lincoln, 1847-1853, pp. lviii-lvix; Pratt, The Personal Finances of 
Abraham Lincoln, pp. 48-50. 


retained. All we can now do is to speculate, and hope that further 
researches into the life of Lincoln during this period will throw some 
further light upon his relationship with the Illinois Central in the first 
two or three years of its existence. 

Lincoln himself said, in a letter dated February 12, 1857, that he 
had been in the "regular retainer" of the Illinois Central for two or 
three years. 15 Whatever uncertainty may exist respecting the exact 
date when Lincoln was first retained by the Illinois Central, we oo 
know that during the year 1853, Lincoln had established a close and 
continuing relationship as an attorney for the Illinois Central, for he 
was asked during that year to serve the Illinois Central in a great 
variety of matters, large and small. 

In April, 1853, Lincoln and Gridley appeared in the McLean Cir- 
cuit Court at Bloomington, Illinois, on behalf of the Illinois Central 
in a right-of-way case. 16 In May, 1853, Lincoln appeared in a right- 
of-way case in Champaign County for the Illinois Central and re 
ceived a fee of $25 for his services. 17 And it was on October 7, 1853, 
that Mason Brayman, Solicitor of the Illinois Central, sent to Lincoln 
a check for $250 as a general retainer in the McLean County tax case, 
later argued by Lincoln in the Supreme Court of Illinois. 

A great deal has been written about the more important cases 
which Lincoln argued for the Illinois Central in the Illinois Supreme 
Court, to which I shall later refer. What I want to emphasize today 
is that Lincoln not only argued cases on behalf of the Illinois Central 
of the greatest importance before the Supreme Court, but that he ap- 
peared on behalf of the Illinois Central in a great many relatively un- 
important cases in the lower courts of Illinois. Lincoln believed that 
it was his duty to his client to take the small cases as well as the large 

We do not know the exact number of cases in which Lincoln ap- 
peared as attorney for the Illinois Central in the nisi prius courts of 
Illinois, either alone or with some associate. We do know that the 

15 Angle, Lincoln Defended Railroad, Illinois Central Magazine, February, 1921, 
p. 40. 

16 Thomas, Lincoln, 1847-1853, p. 329. 

17 Pratt, The Personal Finances of Abraham Lincoln, p. 49; Beveridge, Abraham 
Lincoln, Vol. I, devotes several pages to Lincoln's early relationship with the Illinois 
Central, pp. 584-598. 


number was large. A list prepared a few years ago from records avail' 
able at that time shows that Lincoln appeared in some 19 cases in the 
lower Illinois courts for the Illinois Central. It appears from another 
list that he was counsel for the Illinois Central in 20 other cases. 

We know from other sources, including his letters, that Lincoln 
either alone or with some associate appeared for the Illinois Central 
in a large number of cases. 

Jesse W. Weik, who collaborated with Herndon in the writing of 
Herndon 's Life of Lincoln, and who after Herndon 's death continued 
his search for facts bearing upon Lincoln's life, wrote to Mr. Drennan 
on December 6, 1908, in part as follows: 

"Since your letter arrived, I have gone over my collection of 
Lincolnia — that is a portion of it — to learn which side of the 
numerous railroad cases in which Mr. Lincoln appeared he repre' 
sented. You are correct in your assumption that he was very 
friendly to the Illinois Central." 

Mr. Weik then referred to some cases in which Lincoln sued the Illi- 
nois Central, and said: 

"There are doubtless other similar cases, but thus far it appears 
that whenever a controversy arose, Mr. Lincoln, in most cases 
would be found on the side of the Illinois Central Railroad.' 1 '' 18 

On September 23, 1854, Lincoln wrote Mr. Brayman, Solicitor 
of the Illinois Central, that he had drawn on the Illinois Central for 
$100, and said: 

"The reason I have taken this liberty is, that since last Fall, 
by your request, I have declined all new business against the 
road, and out of which I suppose I should have realized several 
hundred dollars; I have attended both at DeWitt and here 
[Bloomington, McLean County] to a great variety of little busi- 
ness for the Company, most of which however remains unfinished, 
and have received nothing. I wish now to be charged with this 
sum, to be taken into account on settlement." 

I call especial attention to Lincoln's language, "a great variety of 
little business for the Company." That he did handle "a great variety 
of little business for the Company" is shown by his letter of Septem- 
ber 14, 185 5, to James F. Joy, Counsel of the Company. He here 
advised Joy that he had drawn on him for $150, that these were 

18 See also Beveridge, Abraham Lincoln, Vol. I, p. 593. 


all services for the Illinois Central since September, 1854, within the 
Counties of DeWitt and McLean. Lincoln then went on to say: 

"Within that time, and in the two counties, I have assisted, for 
the road, in at least fifteen cases (I believe one or two more) , and 
I have concluded to let- them off at $10 a case." 

Henry C. Whitney haa begun the practice of law in Urbana in 
1854 at the age of 23. He was associated with Lincoln in many cases 
and came to know him well. Whitney wrote a book entitled Life on 
the Circuit With Lincoln, many chapters of which throw a good deal 
of light upon Lincoln's work as a lawyer. What Whitney says about 
Lincoln's interest in young lawyers, a fact frequently referred to by 
other men who knew Lincoln, 19 bears repeating: 

"I well recollect how kindly and cordially he aided and advised 
me about my business at court, it being my first appearance at 
the Bar. I did not feel the slightest delicacy in approaching him 
for assistance; it seemed as if he wooed me to close intimacy and 
familiarity at once; and this from no selfish motive at all — nothing 
but pure disinterested philanthropy and goodness of heart toward 
a young lawyer just commencing his career." (p. 54) 

Whitney said (p. 240) that he was attorney for the Illinois Cen- 
tral from Iroquois County to Effingham, and had a right to employ 
counsel to aid as he chose; that in the Circuit of David Davis, for 
many years Judge of the Fourteenth Circuit, and later appointed to 
the Supreme Court of the United States by Lincoln, Whitney em- 
ployed Lincoln when Whitney needed aid. Whitney then said: 

"I never found any difficulty in Lincoln's appearing for a 
'great soulless corporation' (as was always urged against us) and 
making the best of the case — for they were always in tort, and 
were for alleged carelessness of our employees, therefore always 
doubtful. In such cases he always stood manfully by me, and I 
always, of course, tried to win. He was not, therefore, a milk- 
sop, nor did he peer unnecessarily into a case in order to find some 
reason to act out of the usual line; but he had the same animus 
ordinarily as any lawyer, as a rule." (p. 240.) 

And of particular interest to us is Whitney's account of Lincoln's 
reply to a lawyer who had referred to a "soulless corporation." (p. 

"Through his accurate perceptions, he would discern what was 
genuine and what was sophistical; many a time have I seen him 

19 Beveridge, Abraham Lincoln, Vol. I, p. 527. 


tear the mask off from a fallacy and shame both the fallacy and 
its author. In a railway case we were trying, the opposing lawyer 
tried to score a point by stating that the plaintiff was a flesh and 
blood man, with a soul like the jurymen had, while our client was 
a soulless corporation. Lincoln replied thus: 

'Counsel avers that his client has a soul. This is possible, of 
course; but from the way he has testified under oath in this 
case, to gain, or hope to gain, a few paltry dollars he would 
sell, nay, has already sold, his little soul very low. But our 
client is but a conventional name for thousands of widows and 
orphans whose husbands' 1 and parents' hard earnings are re' 
presented by this defendant and who possess souls which they 
would not swear away as the plaintiff has done for ten million 
times as much as is at stake here/ " 

As this was a railroad case, and one in which Lincoln and Whitney 
appeared for the railroad, it is to be presumed that the railroad was 
the Illinois Central. 

Lincoln was associated in DeWitt County in the handling of Illi- 
nois Central cases, with a young man by the name of Clifton H. 
Moore of Clinton. Moore became one of the leading lawyers in 
central Illinois. 20 

Beveridge, in writing about the relationship between these younger 
men and the lawyers like Lincoln, the circuit riders, says: 21 

"When the county-seat towns were large enough, local attor- 
neys, nearly always very young men, came there to live, and they 
employed older riders of the circuit to conduct the litigation 
they secured. These country lawyers prepared the cases, and 
their experienced circuit-riding partners tried them. From these 
county-seat attorneys, Lincoln received most of his employments, 
as well in the Supreme Courts as on the circuit." 

The studies made by the Abraham Lincoln Association of Lincoln's 
day-by-day activities show that it was the usual thing for Lincoln to be 
associated with a local lawyer at points other than Springfield. Lincoln 
had made himself into a lawyer's lawyer. 22 It will be remembered that 
Lincoln always had an associate in the practice of law in Springfield. 
He was a partner first of John T. Stuart. This partnership lasted from 
1837 to 1841. Stephen T Logan was Lincoln's second partner, this 

20 Whitney, Life on the Circuit with Lincoln, p. 4. 

21 Beveridge, Abraham Lincoln, Vol. I, p. 517. 

22 Hill, Lincoln, the Lawyer, p. 199. 


partnership lasting until about 1844. Lincoln and Herndon then 
formed a partnership which continued until Lincoln's death. 

The now historic Eighth Circuit, over which Lincoln travelled, 
included at one time fourteen counties in Central Illinois, almost one' 
fifth of the State's area. Court sessions were held in the various 
counties twice a year. After the court adjourned in one county, the 
judge rode to the next county seat. Lincoln was the only lawyer who 
rode the entire circuit, visiting practically all the courts, which lasted 
about three months in the spring and three in the fall. 23 

Weik put it well when he said: 24 

"In this crude and nomadic life Lincoln spent almost half of 
each year. Without the conveniences of modern lawyers, steno- 
grapher, typewriter, without books even, he moved from court 
to court, his papers in his hat or coatpockets, his business in his 
head. The consideration and trial of each case began and ended 
with itself, and each successive county brought new business and 
new clients." 

It was because of Lincoln's life as a circuit rider that he partici' 
pated in the handling of Illinois Central cases in Champaign, McLean, 
and DeWitt Counties. And it was because of the reputation which 
Lincoln had made for himself as a lawyer in these years of circuit 
riding that he was retained by the Illinois Central in cases of great 

We do not know what the issues were in each and every one of 
the cases which Lincoln handled for the Illinois Central in the lower 
courts of Illinois. Most of them were in the very nature of things 
"little business," of no complexity or importance. Woldman, in his 
book on Lawyer Lincoln, thus describes Lincoln's cases: (p. 27) 

"Lincoln's cases were generally of this character — petty and 
uninteresting. There were actions arising out of neighborhood 
quarrels, differences about a yoke of oxen, disputes about a cook' 
ing-stove, litigation involving damage to growing crops by tres- 
passing cattle, injuries inflicted upon the cattle by vicious watch' 
dogs, replevin suits to recover possession of cattle, horses and 
sheep running at large, a goodly number of libel and slander 
suits intended to vindicate the honesty and integrity of aggrieved 
parties, cases for debt, a few divorces, and the like." 

23 Weik, The Real Lincoln— A Portrait, pp. 188, 189. 

24 Weik, The Red Lincoln— A Portrait, p. 191. 


Whitney makes this observation on Lincoln's life on the circuit: 25 

"It is strange to contemplate that in these comparatively recent, 
but primitive days, Mr. Lincoln's whole attention should have 
been engrossed in petty controversies or acrimonious disputes be- 
tween neighbors about triflles; that he should have puzzled his 
great mind in attempting to decipher who was the owner of a 
litter of pigs, or which party was to blame for the loss of a flock 
of sheep, by foot rot; or whether some irascible spirit was justified 
in avowing that his enemy had committed perjury; yet I have 
known him to give as earnest attention to such matters, as, later, 
he gave to affairs of State." 

We may well wonder along with Whitney. Thomas has this to 
say about the development of Lincoln as he rode the circuit from 1847 
to 1853 : 26 

"Not only did Lincoln develop mentally, but as he travelled the 
circuit he kept in constant contact with the common people, 
gauged the currents of public opinion, got the people's viewpoint 
on the political, economic and social problems of the day, and 
unconsciously prepared himself to be their spokesman. Honest, 
friendly, a skillful spinner of yarns, he made a host of friends." 

The work of Lincoln as a trial lawyer on the Eighth Circuit un- 
doubtedly contributed to the power of Lincoln's mind, so well described 
by Whitney: 27 

"He possessed, in a higher degree than that of any other states- 
man known to fame, the power and faculty of clear and com- 
prehensive statement; in this respect he was so clear and lucid, 
that it was easy to follow his arguments; his language was com- 
posed of plain Anglo-Saxon words and almost always absolutely 
without adornment; his arguments, though logical and profound, 
were conveyed to the mind by such easy approaches, that the 
ordinary understanding could readily grasp and comprehend 

One wonders whether the leisure that Lincoln had while travelling 
the circuit did not have something to do with the growth of his mind. 
There was little case law; the issues in most of the cases were simple 
and no great amount of time was required to prepare these cases for 

25 Whitney, Life on the Circuit with Lincoln, p. 62. 

26 Thomas, Lincoln, 1847-1853, p. lx. 

27 Whitney, Life on the Circuit with Lincoln, pp. 125-126; see also Hill, Lincoln 
the Lawyer, p. 202. 


trial. 28 Lincoln had time to reflect, in short, to think. Herndon in 
one of his letters 29 said in speaking of Lincoln : 

"He never took the advice of any man or set of men, generally 
speaking. He never asked the opinion or advice of any man. He 
was self-reliant, self-poised, self-helping, and self-assertive, but 
not dogmatic by any means. He clung like gravity to his own 
opinions. He was the most continuous and severest thinker in 

The work which Lincoln did for the Illinois Central or which the 
Illinois Central wanted him to do was not confined to the trial of 
cases. On March 6, 1856, he rendered an opinion on the question, as 
he put it, whether there can be any valid pre-emption on sections of 
land, alternate to the sections granted to the Illinois Central Rail- 
road. 30 This opinion is a closely-written three-page opinion. The ques- 
tions were complicated, but the opinion was short and concise and 
reveals abundant evidence of careful research and a thorough familiar- 
ity with the legal question involved. 31 Lincoln cited no cases but gave 
many references to the United States Statutes at Large. The question 
considered by Lincoln in this opinion was later before the Supreme 
Court in Walter v. Herric\, 18 111. 570. Lincoln did not appear as 
counsel in this proceeding, but the opinion of the Court followed 
Lincoln's reasoning. 

James F. Joy, Counsel of the Illinois Central, telegraphed Lincoln 
on October 14, 1853, asking Lincoln to come to Chicago and serve as 
an arbitrator in a crossing case between the Illinois Central and the 
northern Indiana railroads. The last six words of the telegram read: 
"Answer and say yes if possible." 32 These words bear eloquent testi- 
mony to the reputation which Lincoln had made for himself. 

Let us now consider the cases argued by Lincoln for the Illinois 
Central in the Illinois Supreme Court. There were eleven such cases. 
They ranged from cases involving freight claims and mechanics' liens, 
in which a few hundred dollars only were at stake, to tax cases which 

28 Thomas, Lincoln, 1847-1853, p. lv; Richards, Lincoln, Lawyer-Statesman, pp. 
17-19; Thomas, Lincoln and the Courts, 1854-1861, Lincoln Association Papers, 
1933, p. 55; Woldman, Lawyer Lincoln, pp. 26, 88. 

29 Hertz, The Hidden Lincoln, p. 90. 

30 Angle, New Letters and Papers of Lincoln, p. 157. 

31 Richards, Lincoln, Lawyer-Statesman, p. 228. 

32 Hill, Lincoln the Lawyer, p. 250. 


involved the construction to be placed for all time upon the Illinois 
Central's charter, and upon the result of which cases depended the 
Illinois Central's financial future and, indeed, its very solvency. 

In Illinois Central Railroad Co. v. Broc\, 33 the Supreme Court 
affirmed a judgment against the Illinois Central for $600 alleged 
damages sustained by Brock as a result of the delay to a shipment of 
livestock. The Court, in a thirteen'line opinion, rather curtly said 
that the question was whether the evidence justified the verdict, that 
as it was a mere question of fact the Court did not regard it as im- 
portant to attempt an analysis of the evidence before a jury. It has 
been suggested 34 that the Illinois Central carried this case to the 
Supreme Court to delay the payment of the judgment. The panic of 
1857 had struck the country, and the Illinois Central found itself in 
financial difficulties. It hardly seems, however, that the payment of 
$600 would have affected the fortunes of the Railroad Company one 
way or another. I am inclined to the belief that Lincoln and his 
associate, Whitney, did not have as good a case as they thought they 

But Lincoln had better luck in another freight claim case decided 
by the Supreme Court at the same term (Illinois Central Railroad Co. 
v. Morrison) . 35 The Supreme Court here reversed a judgment of the 
Circuit Court of Coles County for $1,200 against the Railroad Com- 
pany for damages to a shipment of stock. The release signed by Mor- 
rison at the time he shipped the stock stated that the charge for 
transportation was $33 per car instead of the first-class rate as fixed 
by the tariff, and that in consideration of this reduction of the charge 
Morrison released the Railroad Company from claims for damage 
except as such claims might arise from the gross negligence on the 
part of the Railroad Company. The Court, in reversing the judgment 
of the lower court, said (p. 141) : 

"We think the rule a good one, as established in England and 
in this country, that railroad companies have a right to restrict 
their liability as common carriers, by such contracts as may be 
agreed upon specially, they still remaining liable for gross negli- 
gence or willful misfeasance, against which good morals and 
public policy forbid that they should be permitted to stipulate." 

33 December Term, 1857, 19 111. 166. 

34 Beveridge, Abraham Lincoln, Vol. I, pp. 594-596. 
83 19 111. 136. 


Lincoln liked to deal with principles. Whitney once said 36 that 
Lincoln had no regard for trivial things or for mere forms, that the 
pleadings in a lawsuit he either ignored or cut as short as he could; 
that he discarded all useless technicalities and got down to the merits 
of the case at once. 

Hern don quotes this statement by Lincoln: 37 

"I want no disputes and fusses with men about simple unim- 
portant facts. I must conciliate. I want to argue the principles 
of law at the foundation of our differences." 

Unfortunately, we do not have Lincoln's brief or a transcript of 
the argument in the Morrison case, but he undoubtedly argued the 
principle upon which the Court turned its decision. 

The last cases argued by Lincoln for the Illinois Central in the 
Supreme Court of Illinois, in the very year of Lincoln's election to the 
Presidency 38 were six cases involving the law of mechanics' hens. 39 
The opinion of the Court does not give the names of the counsel who 
appeared in these cases, and the name of the Illinois Central does not 
appear among the names of the parties. But Angle, in his day-by-day 
history of Lincoln during the year I860, 40 says that in all of these six 
suits the Illinois Central was one of the defendants and that Lincoln 
argued them for the Illinois Central. The Court, in a six-line opinion, 
merely said that the petition for mechanics' liens did not show that by 
the contracts the work was to be completed within two years from 
the time the contracts were made, and that it had been repeatedly de- 
cided by the Supreme Court that this objection was fatal, and that 
the decrees of the lower court must be reversed. 

We come now to the three tax cases which Lincoln argued on 
behalf of the Illinois Central in the Supreme Court. These cases in- 
volved the fundamental question whether, under the Illinois Central's 
charter, it was required to pay taxes in addition to those provided 
for in the charter. These cases were considered in a scholarly and ex- 
haustive paper by Charles LeRoy Brown before this Conference a few 

36 Life on the Circuit with Lincoln, pp. 126, 233. 

37 Herndon, Facts Illustrative of Mr. Lincoln's Patroitism and Statesmanship, 
The Abraham Lincoln Quarterly, December, 1944, pp. 178, 179. 

38 January 14, 1860. 

39 Radcliff v. Pierce, Reese, Crosby, Watson, Usher & Johns, 23 111. 473. 

40 Angle, Lincoln, 1854-1861, January 14, 1860. 


years ago. 41 I shall, therefore, but briefly discuss these cases, calling 
attention, however, to some matters which I think may interest you. 

The Act incorporating the Illinois Central requires it to pay to 
the State of Illinois a tax, to be applied to the payment of the State 
debt, of five per cent on the gross receipts from the so-called charter 
lines. 42 These lines include the railroad from Cairo through Freeport 
to East Dubuque, and the branch from Centralia to Chicago. The Act 
further requires the Illinois Central to pay a State tax, in case a State 
tax is levied, with a proviso, however, that should the five per cent tax 
and the State tax not amount to seven percent of the gross receipts, 
then the Illinois Central shall pay into the State Treasury the differ- 
ence, so as to make the whole amount paid equal to at least seven per 
cent of the gross receipts. The Act provides that the Illinois Central is 
exempted from all taxation of every kind except that provided for in 
the Act. 

The Illinois Central, construing the charter as it read, took the 
position that it was exempt from the payment of county taxes. If this 
position were sustained, the counties through which the Illinois Cen- 
tral operated would be unable to collect any taxes on the property of 
the Illinois Central within these counties. 

In August 1853, the County Assessor of McLean County assessed 
a tax on the property of the Illinois Central within that county. The 
Illinois Central brought suit to enjoin the collection of this tax. The 
Circuit Court entered a decree dismissing this suit. The Illinois Cen- 
tral appealed to the Supreme Court. 

The case was argued in the Supreme Court on February 28, 1854, 
by Lincoln and Joy for the Illinois Central. It was later reargued, 
Lincoln and Joy again making the argument for the Illinois Central. 
The question of law presented was whether provisions respecting 
taxation in the Illinois Central charter contravened the constitutional 
provisions as to uniformity. The Court held 43 that it was within the 
constitutional power of the Legislature to commute by payment of a 
gross sum the property of a corporation from the payment of any 

41 Charles LeRoy Brown, Abraham Lincoln and the Illinois Central Railroad, 1857- 
1860, Journal of the State Historical Society, June, 1943, Vol. xxxvi, pp. 121-163. 

42 Act of February 10, 1851, Session Laws of Illinois, 1851, p. 72. 

43 Illinois Central Railroad Co. v. County of McLean, 17 III. 291. 


portion of the taxes authorized to be levied for county purposes. The 
decree of the Circuit Court was reversed. The Court turned its deci- 
sion upon the point that Lincoln argued. 44 

There are several aspects of the case that give it color and interest. 
Lincoln wanted to try this case for the Illinois Central. On Septem- 
ber 12, 18? 3, he wrote to the Clerk of Champaign County that 
McLean County had assessed the property of the Illinois Central, that 
an effort was about to be made to get the question of the right to so 
tax the Railroad Company before the Court and ultimately before the 
Supreme Court, and that the Illinois Central was offering to engage 
him. Continuing, he said: 

"As this will be the same question I have had under considera- 
tion for you, I am somewhat trammelled by what has passed be- 
tween you and me, feeling that you have the first right to my 
services, if you choose to secure me a fee something near such as 
I can get from the other side. 

"The question in its magnitude to the Co. on the other hand 
and the counties in which the Co. has land on the other is the 
largest law question that can now be got up in the State, and 
therefore in Justice to myself, I can not afford, if I can help it, 
to miss a fee altogether. 

"If you choose to release me, say so by return mail, and there 
is an end. If you wish to retain me, you had better get authority 
from your Court, come directly over in the stage and make com- 
mon cause with this county [McLean County]." 45 

On October 3, 1853, Lincoln wrote Mason Brayman, Counsel for 
the Illinois Central, that McLean County had not made any engage- 
ment with him in relation to its suit on the subject of taxation, and 
that he was now free to make an engagement with the Illinois Central, 
and that "If you think of it, you may count me in." Brayman counted 
him in, for in Brayman's letter of October 7, 1853, he retained Lincoln 
and sent him a draft for $250. 

Another interesting aspect of this suit is the controversy that arose 
over the payment of Lincoln's fee. There are many different versions 
respecting this controversy. I am going to quote what Lincoln's part- 

44 See the memorandum prepared by Lincoln entitled, Proof, which he had before 
him at the trial of the case brought to recover fees for services rendered in this suit. 
{Abraham Lincoln as Attorney for Illinois Central Railroad, published by Illinois 
Central Railroad Company.) 

45 Beveridge, Abraham Lincoln, Vol. I, p. 586. 


ner, Herndon, said about this controversy in a lecture that he gave 
at Springfield on September 26, 1865, entitled, Analysis of Character 
of Abraham Lincoln, and only recently published in full: 46 

"He never sued a client but once to my knowledge; and that 
was the Central Rail Road. He sued as much then for the insult 
as he did for his fee. The facts of the case are these — Mr. Lincoln 
had twice or three times argued a case before the Supreme Court 
of Illinois, involving millions of dollars in time — a constitutional 
question of taxation, arising under the Constitution and the 
General Laws of the land on the one hand and on the other hand 
a public act incorporating the Rail Road Company in which cer- 
tain franchises-rights-authorities ii powers were given and 
granted by solemn contract by the Legislature of Illinois to the 
company. Mr. Lincoln charged five thousand dollars for his 
trouble, and as his fees. He presented his bill to an agent — 
whiskered'ringed'mustachioed-curly headed-finely dressed pomp- 
ous silly little clerk. This thing in boots made this remark to Mr. 
Lincoln — 'Why, sir, Daniel Webster would not have charged that 
much.'' Mr. Lincoln looked at the animal in clothes a short 
moment and was about to lift him over the counter for the in- 
suiting manner — not matter of the remark, but concluded to say 
nothing &? do nothing then. He sued the Company and re- 
covered the fee, I think to the last cent." 

The Illinois Central's version of the story is somewhat different. 
The general counsel of the Illinois Central advised Lincoln that, 
while he recognized the value of his services, the payment of so large 
a fee to a western country lawyer without protest would embarrass 
the general counsel with the Company's Board of Directors in New 
York, who could not understand as well as would a lawyer the im- 
portance of the case and the value of Mr. Lincoln's services. It was 
intimated to Mr. Lincoln that, if he would bring suit for his bill and 
judgment was rendered in his favor, the judgment would be paid 
without appeal. Thereupon, Lincoln brought suit against the Illinois 
Central in the Circuit Court of McLean County in the spring (if 
1857. 47 

When the case was reached for trial on June 18, 1857, no one 
appeared for the defendant, and judgment was taken by default for 

46 Abraham Lincoln Quarterly, December 1941, pp. 428-429. There were three 
lectures in this series, and they have only recently been reprinted. See The Abraham 
Lincoln Quarterly, September 1941, December 1941, and December 1944. 

47 Beveridge, Abraham Lincoln, Vol. I, pp. 590-593; Abraham Lincoln as 
Attorney for the Illinois Central Railroad. 


$5,000. That afternoon John M. Douglass, Solicitor of the Illinois 
Central, arrived from Chicago, too late to attend the trial. He told 
Mr. Lincoln that the default placed him in an embarrassing position, 
that Lincoln ought to have the fee, and asked him to permit the de- 
fault to be set aside and the case retried. Mr. Lincoln consented, and 
the case was again tried on June 23, 1857. Lincoln said that Mr. 
Douglas had consented that a statement which he had written out and 
which had been signed by some of the prominent lawyers in the State 
might be read into evidence with the same effect as if depositions of 
these gentlemen had been taken. This certificate, signed by six well' 
known lawyers, stated that $5,000 was a reasonable fee for the services 
Lincoln had rendered. Without Mr. Douglass' consent, it could not 
have been received in evidence. 

The jury promptly returned a verdict for the full amount asked 
for, less the sum of $200 already paid him (the exact amount of the 
retainer was $250). 

We have in the files of the law department statements by well' 
known lawyers at Bloomington, written many years ago, regarding 
this suit. These men were all present at the trial. It is clear from 
reading their letters that the suit was an amicable one, and caused 
no bitterness or ill-feeling between the Illinois Central and Lincoln. 48 

Lincoln's capacity for clear and terse statement is displayed in 
the memorandum he prepared, entitled Proof, which he used at the 
trial of this case. We find in this memorandum the following state' 
ment: 49 

"Are, or are not the amount of labor, the doubtfulness and 
difficulty of the question, the degree of success in the result; and 
the amount of pecuniary interest involved, not merely in the 
particular case, but covered by the principle decided, and thereby 
secured, to the client, all proper elements, by the custom of the 
profession to consider in determining what is a reasonable fee in 
a given case?" 

This appears to be as good a statement as could be made of the 
elements that should be considered in the fixing of fees. 

48 Statements of Ezra M. Prince, April 5, 1906; James S. Ewing, April 5, 1906; 
Adlai E. Stevenson, April 6, 1906; Charles L. Capen, April 6, 1906. 

49 Angle, New Letters and New Papers of Lincoln, p. 168. 


The Illinois Central Railroad Company delayed the payment of 
the judgment, apparently because of financial troubles arising out of 
the Panic of 1857. On August 1, 1857, a Writ of Execution was 
issued by the Sheriff; and on August 12, 1857, $4,800, the exact 
amount of the judgment, was paid to Lincoln. He paid half of this 
sum to his partner, Herndon, and loaned the other half, $2,400, to 
Norman B. Judd. 50 

Weik 51 quotes this statement by Herndon respecting the payment 
of the judgment: 

"The judgment was finally paid, and Lincoln gave me my half. 
He brought the money down from Bloomington one evening, and 
sent me word to come to the office. It was after dark, and when 
he had pushed my share of the proceeds across the table to me, 
he covered it for an instant with his hand, smiling, and said, 
'Billy, it seems to me it will be bad taste on your part to keep on 
saying the severe things I have heard from you about railroads 
and other corporations. The truth is, instead of criticizing them, 
you and I ought to thank God for letting this one fall into our 
hands. 1 " 

That this litigation over Lincoln's fee did not dissolve the relation- 
ship of client and attorney which had existed between the Illinois 
Central and Lincoln, is shown by the fact that within a short period of 
time Lincoln was again called upon to handle for the Illinois Central 
two very important cases involving the amount of taxes to be paid by 
the Illinois Central to the State. 52 

50 Pratt, The Personal Finances of Abraham Lincoln, p. 54. 

51 Weik, The Real Lincoln — A Portrait, p. 155; see also Herndon, Life of Lincoln, 
p. 284. 

52 That the suit which Lincoln brought to recover his fee in the McLean County 
case did not affect his relations with the Illinois Central Railroad Company, is 
also shown by the letter (Pratt, The Personal Finances of Abraham Lincoln, p. 53) 
which Ebenezer Lane, resident Director of the Illinois Central in Chicago, wrote on 
May 14, 1857 to Mr. W. H. Osborn, President of the Illinois Central. The last 
paragraph of this letter reads as follows: 

"Meanwhile we settled with Lincoln and fortunately took him out of the 
field, or rather engaged him in our interests. This is the more fortunate, as 
he proves to be not only the most prominent of his political party, but the 
acknowledged special adviser of the Bissell administration." 

Pratt says that it is natural to ask why Lincoln continued his suit against the Illi- 
nois Central for his fees if the Illinois Central had settled with Lincoln. He gives 
his explanation: that the Illinois Central officials in the West had to convince the 
Company's Board of Directors in New York City that the fees had to be paid, 
and paid at a time when the Company was very short of funds. 


The Auditor of Public Accounts of the State, in his Report to the 
Legislature of December 1, 1858, 53 said that the taxes upon the assessed 
value of the Illinois Central's property when added to the five per cent 
tax exceeded seven per cent of the gross earnings for 1857, and that the 
Illinois Central insisted that under its charter its liability for taxes 
could not exceed seven per cent of its gross earnings, while on the part 
of the State it was insisted that its liability could not be less than seven 
per cent of its gross earnings but might be more, depending upon the 
assessed valuation of the property. 54 The Auditor made assessments 
which would have resulted in the payment of a State tax exceeding 
two per cent of the gross receipts, which would have brought the total 
payment of taxes under the charter to a sum greater than seven per 
cent of the gross receipts. The Illinois Central having paid seven per 
cent of its gross receipts for the year 1859, declined to pay any more, 
and appealed to the Supreme Court, under the Act of February 21, 
1859, 55 from the assessment made by the Auditor. 

Before the case was tried in the Supreme Court, the Auditor, 
Jesse K. DuBois, and other State officers, including Stephen T. Logan, 

53 Session Laws of Illinois, 1859, pp. XIX-XXIII. 

54 The Auditor, Jesse K. DuBois, was Lincoln's close friend. In the Autumn of 
1857 a dispute arose between the Company and the Auditor as to the amount of 
taxes due Illinois under the Illinois Central's charter. The Illinois Central offered 
to pay what it believed to be due — #86,449.02. The Auditor, however, contended 
that an additional sum of #94,000 was due to the State on the basis of the Auditor's 
assessment for the State taxes. On December 21, 1857 Lincoln wrote DuBois the 
following letter: 

"Dear DuBois: 

"J. M. Douglas, of the I.C.R.R.C., is here and will carry this letter. He 
says they have a large sum (near #90,000) which they will pay into the treasury 
now, if they have an assurance that they shall not be sued before January 1859 
— otherwise not. I really wish you would consent to this. Douglas says they 
can not pay more, and I believe him. 

"I do not write this as a lawyer seeking an advantage for a client; but only 
as a friend, only urging you to do what I think I would do if I were in your 
situation. I mean this as private and confidential only, but I feel a good deal 
of anxiety about it. 

Yours as ever, 

A. Lincoln." 

The Auditor apparently followed Lincoln's advice. It is to be borne in mind that 
at this time the country was in the throes of the Panic of 1857. The Illinois Cen- 
tral on October 9, 1857 had been forced to suspend payment. (Beveridge, Abraham 
Lincoln, Vol. I, pp. 596, 597; Brown, Lincoln and the Illinois Central, 1857-1860, 
Journal of the Illinois State Historical Society, June, 1943, Vol. XXXVI, pp. 139- 

55 Session Laws of Illinois, 1859, pp. 206-207. 


the principal attorney for the Auditor, together with Abraham 
Lincoln, made a trip over the Illinois Central Railroad in a private 
car for the purpose of familiarizing the State officers with the property 
of the Railroad Company. This trip took nine days (from July 14 
to July 23, 1859). DuBois, Logan, and Lincoln took their respective 
families along on this trip. 56 

The case was tried for the Illinois Central by Lincoln before the 
Supreme Court at Mt. Vernon on November 18 and 19, 1859. 
Lincoln called ten witnesses who testified regarding the value of 
the Illinois Central's property. The case was immediately argued and 
the Court entered its order on November 21, 1859, finding that the 
value of the railroad was $4,942,000, the exact amount set up in the 
Illinois Central's return for that year. The Court handed down no 
written opinion. 57 The State tax applied to this value amounted to 
slightly less than two per cent of the gross receipts. This two per cent 
had been paid by the Illinois Central to the State, and under the order 
of the Court there was no additional amount for the Company to pay 
on the 1859 State tax. 

There was then pending, however, in the Springfield Grand Divi' 
sion of the Supreme Court an action of debt for the 1857 State taxes. 
This case was argued in the Illinois Supreme Court on January 12, 
1860, John M. Douglass and Lincoln appearing for the Illinois Central. 
The Court said that it considered it would be unnecessary to make any 
decision upon the question whether under the charter the Railroad 
Company could be compelled to pay any taxes exceeding in amount 
two per cent of the gross receipts; that the case turned upon the ques- 
tion whether the property of the Railroad Company had been esti' 
mated too high and, if too high, how much it should be reduced to 
conform to the real taxable value. On this point it was agreed that 
the evidence heard by the Court at Mt. Vernon should be considered 
the evidence then before the Court. 

The Court at the November, 1861, Term 58 found that the value 
of the Railroad Company's property in 1857 was the same as that it 

56 Angle, Lincoln, 1854-1861, pp. 289-290; Starr, Lincoln and the Railroads, pp. 
67-68; Brown, Abraham Lincoln and the Illinois Central Railroad, 1857-1860, Jour- 
nal of the Illinois State Historical Society, June, 1943, Vol. XXXVI, p. 152. 

57 The order of the Court is set out in the Opinion by the Court in State of Illi- 
nois v. Illinois Central Railroad Co., 27 111. 56. 

5 » State of Illinois v. Illinois Central Railroad Co., 27 111. 64. 


had earlier found for 1859— $4,942,000. Here again the Railroad 
Company had no State tax to pay in addition to the amounts it had 
theretofore paid to the State. It was contended by counsel for the 
State that the prospective value of the Illinois Central Railroad should 
be taken into consideration, and not its income. The Court, in the 
concluding paragraph of its opinion (pp. 69-70), made this interesting 
observation : 

"This road is doing its best, and it is proved it has no net in- 
come — no profit on its cost, and is not a good investment at a 
value greater than that fixed by its owners, and proved on this 
trial. In process of time it may produce a greater income, when 
its value for taxation will be fixed proportionately higher. Under 
the law it must be valued and assessed every year, and whenever 
it shall produce twice as great an income as it does at present, 
it will be valued, of course, twice as high." 

The determination of the issues in these three tax cases was of the 
greatest importance to the Illinois Central. The work that Lincoln 
did in these cases shows his sagacity, his generalship, and his ability 
as a lawyer. As Angle put it a few years ago. 59 

"The Illinois Central may well be proud of Abraham Lincoln — 
not because he afterwards became President of the United States 
but because as an attorney he served his client superlatively 

In closing these remarks on Lincoln as an Illinois Central lawyer, 
I cannot refrain from quoting what Herndon said respecting Lincoln's 
ability as a trial lawyer and as an advocate in an Appellate Court. 
I think Herndon 's opinion will interest you. In appraising Herndon 's 
estimate of his partner, we must bear in mind that Herndon was more 
closely associated with Lincoln than any other man. I should add, 
however, that Herndon's opinion of Lincoln as a trial lawyer has not 
been accepted by all students of Lincoln's career as a lawyer. 60 Hern' 
don said in one of his lectures entitled, Analysis of the Character of 
Abraham Lincoln: 61 

"It is said that Mr. Lincoln was an excellent nisi prius lawyer 
— i. e., a good Circuit Court lawyer. To reasonable men he had 
scarcely a quality of a nisi prius lawyer, as the world understands 

59 Lincoln Defended Railroad, Illinois Central Magazine, February, 1929, p. 40. 

60 Beveridge, Abraham Lincoln, p. 573; Angle, Abraham Lincoln, Circuit Lawyer, 
Lincoln Centennial Association Papers, February 11, 1928, pp. 20, 21. 

01 The Abraham Lincoln Quarterly, December, 1941, pp. 429-430. 


that word. The qualities of a nisi prius lawyer are: quickness, 
sharpness, versatility of mind, a mind that can move and leap 
here and there as occasions and contingencies quickly demand and 
quickly form accurate judgments. Technical, quick, analytic, 
sagacious, cunning minds— cold, heartless — conscienceless men 
succeed in the Circuit Courts in bad cases and good alike. I have 
seen Mr. Lincoln sent out of court a thousand times because 
figuratively speaking an V was not dotted and a Y crossed. If 
success was a test of the character of a nisi prius lawyer, Mr. 
Lincoln could not undergo the test. My great ideal of a nisi prius 
lawyer is the gentlemanly Lucifer driving legal business among 
mankind. The pious, accomplished-witty-clever Mephistopheles 
of Goeta [sic] would have made a polished and accomplished 
nisi prius lawyer. I do not consider it any compliment to Mr. 
Lincoln to call him an excellent Circuit Court lawyer. 

"Mr. Lincoln was a great lawyer in the Federal Courts, in the 
Supreme Court of the State of Illinois, and in the Circuit Courts 
of the State, when he had time to prepare his cases. In the 
Federal Courts and the Supreme Court of this State he did have 
time and did thoroughly prepare and understand his case. He 
was then a Number One lawyer. In the Circuit Court I place 
Mr. Lincoln as a third-rate attorney." 

Richards, in his work on Lincoln, 62 says that the record of Lincoln 
while a practicing lawyer reveals the source of the greatness that was 
so manifest when he was called upon to deal with the affairs of the 
Nation. The Illinois Central Railroad Company may well take pride 
in the fact that the work that Lincoln did for the Illinois Central, in 
his office, in the trial courts, and in the Supreme Court, made some 
contribution to the greatness of Lincoln which has placed him among 
the immortals. 

G2 Abraham Lincoln — Lawyer-Statesman, p. 89. 


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